Date: Fri, 17 May 1996 13:39:12 -0400 (EDT)
From: ptownson@massis.lcs.mit.edu (Patrick A. Townson)
Subject: Internet/ACLU Litigation Update
Here are some recent updates in the ongoing litigation regards the
Communications Decency Act. Three reports received during this
past week are attached.
PAT
Date: Fri, 17 May 1996 00:04:26 -0400
From: Monty Solomon
Subject: ACLU v. RENO: TRIAL UPDATE
Reply-To: monty@roscom.COM
Excerpt from 05-08-96 ACLU Newsfeed
*ACLU v. RENO: TRIAL UPDATE*
*Closing Arguments Scheduled for Friday*
*In Landmark Challenge to Internet Censorship Law*
Wednesday, May 8, 1996
Wrapping up five days of courtroom testimony before a three-judge
panel in federal district court in Philadelphia, the ACLU will present
closing arguments this Friday, May 10, in the trial that will
determine the future of free speech in cyberspace.
Plaintiffs and defendants will have two hours each to make their
case and answer questions from the judges. The consolidated cases of
ACLU v. Reno and ALA v. DOJ challenge provisions of the Communications
Decency Act that criminalize making available to minors "indecent" or
"patently offensive" speech.
During the five scheduled days of trial, which took place during
March and April, the court heard from 15 witnesses for the plaintiffs,
who testified about the technological and sociological nature of the
Internet and how the censorship law would effectively ban most
"indecent" speech in cyberspace.
Lawyers for the Department of Justice presented two witnesses in
support of its case.
"The government's case, if anything, has highlighted further the
intolerable vagueness of the Communications Decency Act," said
Christopher Hansen, who will present oral arguments for the ACLU on
Friday. "The government witnesses' responses to the Court's questions
illustrated just how freewheeling the subjective, discretionary
judgments of government prosecutors would be under the CDA."
Under questioning from the judges, both of the government witnesses
testified that they understood "indecent" or "patently offensive" to
include such politically inspired expressions as "F--- the CDA," and
such relatively tame partial nudes as the Demi Moore photo on the
cover of Vanity Fair.
Plaintiff and defendant lawyers will appear before the court
beginning at 9:30 a.m. on Friday morning. The ACLU and ALA coalitions
will divide the two hours: Christopher Hansen of the ACLU will appear
before the judges first, and Bruce Ennis for the ALA coalition will
appear next.
Much of the presentation is expected to be taken up with responding
to questions from the judges. At the discretion of the court, and
depending on the amount of time used in arguments, plaintiffs may be
given an opportunity for rebuttal following the government's oral
arguments.
The Brief:
In its post-trial brief filed last week, the ACLU called the
Communications Decency Act "the most restrictive speech ban in any
medium," and said that it would "radically restrict and restructure
cyberspace."
The ACLU's brief contends that the government, in an attempt to
defend the law, is recasting the ban on "indecent" and "patently
offensive" speech as a ban on "pornography." In doing so, the ACLU
argued, the government is trying to narrow the CDA to a statute that
might be more constitutionally defensible.
But, the ACLU brief said, online pornography is already subject to
criminal prosecution under existing obscenity law, and the "indecency"
and "patently offensive" terms do not contain exceptions for material
with "serious value and without prurient appeal."
The ACLU also asserts in its brief that the government has not met
its burden of showing that the CDA is the least restrictive means
available of protecting minors, and that it has a "compelling state
interest" in criminalizing all "indecent" or "patently offensive"
Internet communications that might be accessed by minors.
Despite the heavy burden of proof necessary where free speech is
infringed, the government presented no evidence at the hearing as to
why it had a "compelling interest" in protecting minors from so-called
indecency online.
In contrast, ACLU plaintiffs presented substantial evidence that the
categories of "indecent" and "patently offensive" speech include a
vast quantity of material that is valuable to minors, especially older
minors.
ACLU plaintiffs Critical Path AIDS Project, Wildcat Press and Stop
Prisoner Rape and ALA witness Robert Croneberger of the Carnegie
Library all testified about the value to minors of their online
information on safer sex, gay and lesbian issues, prison rape, and
other frank discussions relating to sex.
In fact, the government's only witness to address this point,
Special Agent Howard Schmidt, testified that he believed his own son,
by the time he is 17, "will have a sufficient basis of input from [me]
and from his life experiences that he would not be harmed even if he
were exposed to even exploitative sexually explicit material online."
The government's argument that the CDA satisfies the "least
restrictive means" test is also unpersuasive, the ACLU brief said.
The defense that online speakers can keep minors from viewing their
communications by using a verified credit card or access code ignores
the massive economic costs involved. It would also be technologically
impossible, as the government's witness Dan Olsen conceded, to
identify and screen out minors in many areas of cyberspace, such as
Usenet newsgroups.
Olsen's own proposal for self-labeling or "tagging" so-called indecent
material is equally burdensome and unworkable, the ACLU brief asserted.
Using his "-L18" system, Olsen testified that the best way to comply
with the new censorship law would be to block all possibly "indecent"
words and images until "questionable" material could be reviewed and
tagged for adult consumption. This process could take weeks or
months, he told the court.
"Dr. Olsen's proposal betrays an insensitivity to free speech that
is simply staggering," said Marjorie Heins of the ACLU, who also
appeared before the court in ACLU v. Reno. Forced labeling also
violates the First Amendment, Heins said, because it compels speakers
to say things they don't want to say, and inhibits the listener's
right to access constitutionally protected material anonymously.
In contrast, parental control mechanisms such as SurfWatch, Net
Nanny and Cyberpatrol are already commercially available, and others
are being developed, that would be more effective than any of the
government's proposals. These user-based technologies enable parents
to block whatever content they feel is inappropriate -- whether it be
sexual, violent or religious in nature.
Olsen's tagging scheme, on the other hand, because it relies on
self-censorship, would not block material originating from foreign
sites not subject to the CDA, and may not be feasible on the large
commercial online services such as America Online, Compuserve and
Prodigy.
"Ultimately," said the ACLU's Hansen, "we hope the Court will
recognize that the Internet is a uniquely democratic medium of
expression that allows all of us -- rich or poor, powerful or weak --
to speak widely and to read widely. This statute has the potential to
quash a medium with a vast potential to foster communication, promote
democracy and make the marketplace of ideas' a reality in the 21st
century."
The judges are expected to issue a ruling on the Plaintiff's
preliminary injunction motion this spring or summer. Under expedited
provisions, any appeal on rulings regarding the new censorship law
will be made directly to the U.S. Supreme Court.
Lawyers for the ACLU appearing before the judges are Christopher
Hansen, Marjorie Heins, Ann Beeson, and Stefan Presser, legal director
of the ACLU of Pennsylvania.
NOTE: Text of the ACLU's closing brief in ACLU v. Reno can be
downloaded at the ACLU web page (http://www.aclu.org) or at ACLU's
Constitution Hall on America Online (keyword ACLU).
-----------------------
Excerpt from 05-13-96 ACLU Newsfeed
*ACLU V. Reno: Trial Update*
At Closing Arguments, ACLU Calls on Court
To Protect Free Speech In Cyberspace
PHILADELPHIA -- A three-judge panel heard closing arguments today
regarding a law that would criminalize free speech in cyberspace.
Plaintiffs and defendants each had approximately two hours to make
their case and answer questions from the judges.
Much of the government's argument today hinged on a proposal requiring
Internet users to identify so-called indecent or patently offensive
words or images with an electronic "tag." But by the end of the day,
government lawyers conceded -- under pointed questioning from the
judges -- that it would be impossible to implement this scheme given
the technology currently available.
That concession alone, the ACLU said, could justify granting
plaintiff's motion for a preliminary injunction against the censorship
provisions of the Communications Decency Act, which criminalizes
making available to minors "indecent" or "patently offensive" speech
online.
"It's about time that the government conceded what the cyberspace
community has known all along -- that this is an unworkable law," said
Christopher Hansen, who presented oral arguments for the ACLU. "And
even if it were feasible, it is constitutionally unthinkable to give
the government the power to restrict valuable speech, or to compel
people to pejoratively label their speech."
Government lawyers also acknowledged today that the law criminalizes
speech of value -- e.g., artistic, literary or medical information --
not just "pornography" or other prurient words or images that aren't
covered under existing obscenity laws. In fact, as Hansen pointed out
to the Court, Congress made sure that the Communications Decency Act
applied specifically to libraries and educational institutions, and
rejected several opportunities to make any exceptions for valuable
speech.
Such an omission might have been a "legislative craftsmanship
problem," suggested Anthony Coppolino, one of the lawyers appearing
for the Department of Justice. But that argument was met with
skepticism from the judges.
"The government is basically saying trust me' when it comes to
determining what kind of online words and images will be considered
indecent' or patently offensive,'" said Marjorie Heins, a lawyer on
the ACLU v. Reno team. "But they were not able to offer a coherent
explanation as to what those terms mean."
The risk involved to individuals in making such a determination is
especially grave when criminal penalties are involved, the ACLU
emphasized. The CDA provides for penalties of up to two years in jail
and $250,000 in fines.
Addressing this issue, Judge Stewart Dalzell asked the government how
it would view an individual such as ACLU plaintiff Kiyoshi Kuromiya,
who has vowed to maintain his website no matter what. Kuromiya has
testified that his website, the Critical Path AIDS Project, provides
"lifesaving" information on safer sex practices -- some of it
necessary sexually explicit -- aimed at reaching teens around the
world. Justice Department lawyer Jason Baron responded that if Mr.
Kuromiya didn't want to comply, "he can take the consequences."
Overall, the ACLU said, plaintiffs succeeded in making three essential
points to the court:
-- The Communications Decency Act is a criminal statute with criminal
penalties.
-- The law is aimed specifically at speech that is constitutionally
protected.
-- The government's tagging scheme would force every American to censor
him/herself to avoid risk of criminal prosecution.
Plaintiffs also reminded the Court that the censorship law applies not
only to websites, but to newsgroups, chat rooms, mail exploders, and
other fora that constitute a vital part of the Internet. The ACLU has
asserted in its brief -- and the government largely conceded today --
that various schemes for self-censorship would be unworkable in these
environments as well.
At the conclusion of today's proceedings, Chief Judge Dolores K.
Sloviter said that the Court would issue a ruling "in due course."
Under expedited provisions, any appeal on rulings regarding the new
censorship law will be made directly to the U.S. Supreme Court.
ACLU v. Reno was filed the day the Communications Decency Act was
signed into law. A second case, brought by the American Library
Association, was consolidated with ACLU v. Reno on February 26, 1996.
Lawyers for the ACLU appearing before the judges are Christopher
Hansen, Marjorie Heins, Ann Beeson, and Stefan Presser, legal director
of the ACLU of Pennsylvania. Attorney Bruce J. Ennis presented oral
arguments today on behalf of the ALA/CIEC coalition.
Date: Mon, 13 May 1996 08:38:32 -0400
From: Dave Farber
Subject: IP: ACLU v. Reno: "the best bench we could hope for"
by Craig A. Johnson
American Reporter Correspondent
Washington, D.C.
'AS GOOD A BENCH AS WE CAN HOPE FOR'
by Craig A. Johnson
American Reporter Correspondent
PHILADELPHIA -- The buzz was loud and the message clear as a panel of
judges in the ACLU v. Reno case heard closing arguments in
Philadelphia and then adjourned to consider the first of two major
constitutional challenges to the Communications Decency Act (CDA) that
critics say threatens free speech on the world-wide Internet.
The second case, Shea v. Reno, is set for final arguments on June 3 in
Federal court in Manhattan. Both cases are being heard by three-
judge panels and are likely to be consolidated if they reach the
Supreme Court under an expedited review process outlined in the law.
Both cases were filed immediately after President Clinton signed the
huge telecommunications reform act, which contains the CDA, on
February 8. The ACLU case was the first to end.
As government lawyers headed off into the foggy Philadelphia
afternoon, the words of Judge Stewart Dalzell in Federal court here
yesterday still rang in the minds of courtroom observers: In order to
preserve the Internet "as the most democratic medium that the human
mind has come up with yet, a chilling effect is something we have to
consider" as the panel rules on the CDA.
"How can we, as a matter of judicial responsibility, sustain against a
chill," Judge Dolores K. Sloviter, chief judge of the Fourth Circuit
Court of Appeals asked government counsel, in the absence of
technology which "would not block appropriate [First Amendment
protected] material for adults?
"Why doesn't the government concede that a preliminary injunction
would be appropriate," she queried, her exasperation evident.
The central question of how to "find out whether one is an adult" was
left unanswered throughout the whole case, Sloviter asserted. She
charged that the government was asking the panel "to sustain the
statute based on the defenses," which are not validated by current
technical realities.
"Until it exists," Judge Sloviter exclaimed, "it isn't working. Until
it works, we don't know how it will work." Judge Dalzell agreed,
stating, "The evidence is quite clear that ... that there is no
technical way to screen for age based on available technology" which
non-commercial providers can avail themselves of.
These were the most compelling signs yet that the panel may be
leaning favorably toward the plaintiffs' request for an injunction.
"This is as good a bench as we can hope for in this situation," ACLU
lead attorney Christopher Hansen told reporters after adjournment.
The day's arguments covered the entire waterfront of issues from
the facial challenges to the constitutionality of the Communications
Decency Act (CDA) to an animated debate on "defenses" and "safe
harbors" to the disclosure of the recent FBI's "review" of Compuserve
at the behest of the right-wing American Family Association (AFA).
Hansen and American Library Association/Citizens' Internet
Empowerment Coalition (ALA/CIEC) counsel Bruce J. Ennis hammered home
point after point until finally, it seemed, the government's entire
house of cards had collapsed onto its lap. The plaintiffs' attorneys
effectively eradicated whatever defenses existed with respect to both
the "indecency" standard's ability to pass Constitutional muster on
its face, as well as the Act's attempt to tack a broadcast standard
originally mandated by the Federal Communications Commission (FCC)
onto the Internet.
Hansen forcefully got across the facial argument that the statute is
an "attempt to prevent adults from having information that they are
constitutionally entitled to." "All speech," he declared, "would be
brought down to a level acceptable to minors." Hansen stressed again
and again that the act would "prohibit speech that has serious value,"
notwithstanding the government's contentions to the contrary.
In his closing remarks, Hansen inveighed further against the
criminalization of speech that would result from the law. "Libraries
and institutions of higher learning" would be thrown into a witch-hunt
atmosphere, he charged.
Speaking to reporters after adjournment, Hansen amplified on this,
saying that the CDA was being used by right-wing groups such as Enough
is Enough to "go after libraries and colleges, which are not what we
normally think of as great smut-peddlers." Religious Right activists
recently tried to ban books online at the University of California -
Riverside, a campus located in one of the most conservative regions of
the state.
Hansen also decried the government's argument that, with
technological development, "it is possible to label speech as decent
or indecent."
The "notion that Government would impose on all of us, before we
speak" a criteria as to whether our speech was decent or indecent, he
declared, raises a "serious Constitutional problem," he said.
ALA/CIEC counsel Ennis argued in closing that "there is nothing in
the pipeline" that will technically work to identify adults in online
newsgroups, chat rooms, and listservs or mail exploders. Second, he
said, the government admitted that tagging is not effective, and even
if it were, it still would not constitute a "safe harbor."
Furthermore, "it would violate the doctrine against compelled
speech," which states that "attaching a pejorative label to one's own
speech" is something that someone "should never be required to do."
There is no reason to assume, that Congress had any intent to require
self-labelling, he maintained. In fact, Congress specifically
rejected self-labelling with respect to broadcast speakers.
The Internet, Hansen urged throughout yesterday's argument, was a
specific medium, which could not tolerate having rules applied to it
which were crafted in the past for other media. Rather, it is a
"democratizing, many-to-many" medium. One of its real effects, he said
is that it "is making us all speakers and listeners."
The panel of judges seemed to concur that the CDA was based on
broadcast laws. Judge Dalzell stated that Congress had "reached into"
past judicial decisions applying to broadcast media and "begat the
Communications Decency Act." But, if access to "indecent" content is
found not to be "pervasive," which is the primary characteristic of
broadcast media, then how could they sustain this statute in light of
the unique characteristics of the Internet, Judge Dalzell queried?
This is particularly relevant for chat rooms, news groups, and
list servers or mail exploders. Plaintiffs' council Ennis argued that
"tagging and registering cannot possibly protect minors" in these fora
unless there is ample parental supervision and control. If that is
present, Ennis said, then we "don't need the law."
Judge Sloviter took the questioning one step further, declaring that
to require governmental actions which may militate against the wishes
of parents was "a serious Constitutional question." She asked: "What
is the Government's interest in shielding 15-year olds from material
that they want to see and the parents don't care" whether they see?
Sloviter went on to grill Government counsel on the intent of Congress
to "help the parents." How, she asked, could this be done if the
Court "found that the evidence does not support the proposition that
there is a significant probability of inadvertently chancing ..."
upon the material without "a lot of clicks or a warning?" "What would
remain of the government's compelling interest," she asked.
The questions largely went unanswered by government lawyers, though
US Atty. Jason R. Baron said that "Congress could draw a bright line"
which would would in fact criminalize some speech with redeeming
value. The Government, he said, may prevent a 14-year old's right to
read Henry Miller's Tropic of Cancer online. Similarly, excerpts from
a Broadway play on AIDS may fall within the statute's boundaries.
This did not sit well with the judges as they repeatedly emphasized
that the Congressional Conference Committee statement that material
"with no intent to offend" should not be swept under the law.
At one point, in a direct parallel with the questions at issue in
Shea v. Reno, Judge Dalzell, observing that recent issues of the
Philadelphia Inquirer and the New York Times had pictures and articles
that many people would find "patently offensive," asked government
counsel if he would advocate a "newspaper decency act."
Dalzell explained to a befuddled counsel that Congress clearly did
not have the power to write a "newspaper decency act." "What is it
about the Internet media that makes it a completely different ball
game," he asked. No persuasive answer was uttered by government
counsel.
The judges returned several times to the government's contention
that effective technology for screening, tagging, and blocking would
soon be available. Sloviter was unconvinced. "After five days of
testimony," she said, "all we got was hypotheticals." The tagging
scheme introduced by one of the government's witnesses, Sloviter
suggested, "was the product of [his] creative imagination," and
"thought up ... after the government hired him as a witness."
In the end the decisive issues were raised in sharp relief by all
three judges. If the intent of Congress was to help parents prevent
their children from viewing objectionable content, and the technology
that is available cannot do that, what good is a CDA? If available
technology cannot find a solution for authenticating adults and
children, then doesn't the rationale for the CDA collapse? And, if
the CDA, with its labelling scheme of "indecency" is overbroad and
covers speech which has value, then isn't it unconstitutional on its
face?
Despite all the roundabout arguments and twists and turns, the
government never effectively answered any of these threshold
questions.
(Craig Johnson is a telecommunications analyst in Washington.)
* * *
The American Reporter
"The Internet Daily Newspaper"
Copyright 1996 Joe Shea, The American Reporter
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------------------------
[TELECOM Digest Editor's Note: So which way is this whole thing going
to go? I'll refrain from adding any editorial content of my own this
time around since most of you know my feelings anyway. PAT]